Environment, Legislature

Pleading fear and ignorance, House lawmakers get schooled on GenX

Rep. Frank Iler, a Republican from Brunswick County: “We’ve been operating on fear and sheer ignorance.” (Photo: NC General Assembly)

(The Senate Select Committee on North Carolina River Quality meets today at 2 p.m. in Room 1027/1128 of the Legislative Building.)

The neighborhood immediately north of the Chemours plant, which straddles the Cumberland-Bladen county line, is a mix of mobile homes, concrete-block houses painted white or gray, and upscale brick manses, some still under construction.

But what all of these households have in common is a small wellhouse in the yard. Too far from Fayetteville to connect to that city’s utility, the homes are on private drinking water wells. And here on the brim of the Chemours plant, 19 wells — their exact locations kept confidential for privacy reasons — are tainted with GenX, an unregulated contaminant produced by the facility’s vinyl ether manufacturing line.

From southern Cumberland County and areas downstream, including Brunswick County and Wilmington, GenX has been detected in the Cape Fear River and in private and public drinking water supplies. And for the last four months, lawmakers and state environmental and health officials have been trying to calm the public while attempting to get a handle on a contaminant that they know little about, and can neither taste, smell, nor see.

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Last Thursday, at the first meeting of the House Select Committee on North Carolina River Quality, Rep. Frank Iler, a Brunswick County Republican provided overdue guidance to his colleagues: “We’ve been operating on fear and sheer ignorance. We need true information.”

Iler’s candor notwithstanding, lawmakers have spent the summer accusing state environmental and health officials of carelessness — and the media of recklessness — in their handling of the GenX crisis.

The legislature rebuffed Gov. Cooper’s request for $2.6 million to help those agencies address drinking water contaminants statewide. Then, signaling their discontent, lawamkers passed legislation that at the last-minute, appropriated $435,000 to the Cape Fear Public Utility Authority and UNC Wilmington to study the contaminant.

(Read a related post from the Port City Daily about how the utility’s PR firm tweaked a press release to insinuate the governor had a lackadaisical attitude toward the crisis.)

Gov. Cooper vetoed that measure, House Bill 56, but it’s expected to come up for an override vote on Wednesday.

For six hours, the committee heard from state environmental and health officials, Duke University scientists, UNC Wilmington’s legislative liaison and the Cape Fear Public Utility Authority. There were several points of near-consensus:

  • It will require a lot of money — tens, if not hundreds of millions of dollars — for sampling, monitoring and cleanup.
  • Federal and state regulations are too weak to rein in companies like Chemours, which have found legal loopholes allowing them to pollute. They also can keep much of the information about GenX secret, under federal rules governing Confidential Business Information.
  • State government and universities should work cooperatively, using their technical abilities and expertise, to attack the problem.

The problem of emerging contaminants — unregulated, secret and hard to detect with standard laboratory equipment — is plaguing environmental regulators nationwide.

“This is like industrial whack-a-mole,” Tracy Skrabal, coastal scientist and manager of the Southeast Regional Office of the NC Coastal Federation, told the select committee. “If it were that easy, we wouldn’t have a national problem.”

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Environment, Legislature

Who’s cribbing from whom? Sen. Mike Lee and Civitas share talking points on GenX, DEQ funding

Sen. Mike Lee, a Republican from New Hanover County (Photo: NCGA)

Sen. Mike Lee, a Republican from New Hanover County, gave an impassioned presentation about GenX to his fellow lawmakers on the Environmental Review Commission yesterday, saying, “We don’t know who to trust. We seem to be getting contradictory information.”

He then proposed that lawmakers not approve the governor’s request for $2.58 million in recurring funds for the state environmental and health departments, but instead, funnel the money to the Cape Fear Public Utility Authority and UNC Wilmington to come up with an “action plan.”

The subtext was that Lee doesn’t trust the state agencies, but he does trust the utility. However, the utility has experienced lapses of its own. According to a letter from DEQ to Republican Senate caucus, the utility knew about GenX in the drinking water last May — 13 months before it became public via the Star-News.

Where did this funding idea come from? An Aug. 14 letter from Civitas to the House and Senate leadership offers a few clues. Written by Civitas President Francis X. De Luca, the letter asks House Speaker Tim Moore and Senate Pro Tem Phil Berger to allocate those funds to public water systems in the lower Cape Fear. “Spending money for a solution is a much more effective and direct way to respond,” the letter reads.

Rep. Holly Grange, a Republican from New Hanover County (Photo: NCGA)

However, the “action plan,” also supported by fellow Republican Reps. Holly Grange of New Hanover County and Chris Millis of Pender County,  is inchoate. Millis, who sits on the ERC, made a motion for the General Assembly staff to coordinate with the Lower Cape Fear utilities, plus UNC Wilmington, “to begin a dialogue on a proper plan of action to address the matter before us.”

Even though there is no evidence that this rudimentary plan would address the sense of urgency facing Wilmington residents, the ERC approved it, albeit without the funding component.

Civitas, notoriously anti-regulatory, recently cribbed a page from the Southern Environmental Law Center playbook. On July 28, Civitas sent Chemours, DEQ and the EPA a written notice of illegal conduct under the Clean Water Act. If the DEQ has not adequately addressed these claims within 60 days of notification, Civitas can sue. (The Cape Fear utility sent its own 60-day notice on Aug. 3.)

The SELC used the same protocol in 2013 over Duke Energy’s coal ash storage. In that case, DEQ, under Secretary John Skvarla, thwarted SELC’s suit by bringing an enforcement action — on the 59th day. (The court allowed the firm to have intervener status in the proceeding.) DEQ’s maneuver was widely viewed as a way to shield Duke from a lengthy citizens’ lawsuit.

So if the Cooper administration and/or DEQ does file an enforcement action against Chemours, then Civitas could try to argue the agency is trying to shield Chemours, as the previous administration allegedly attempted to do with Duke Energy. And if DEQ doesn’t file an enforcement action, the Civitas could claim the agency is being soft on polluters. Either way, Civitas has politicized the issue.

And none of this will immediately help the residents of the Lower Cape Fear River Basin.

“In light of these actions,” DeLuca wrote, “We are confident we may soon see some progress, even if slow.”

 

 

Environment, Legislature

DEQ had GenX info under Secretary Donald van der Vaart; under Michael Regan, delay attributed to scheduling conflicts

Donald van der Vaart, former Department of Environmental Quality secretary, was in charge when state officials first learned last fall there could be a problem with GenX in the Lower Cape Fear River. And the Cape Fear Public Utility Authority knew even earlier.

But not until June of this year, when the Star-News in Wilmington reviewed and reported on the study, did DEQ under the current administration begin to investigate the presence of GenX in drinking water.

According to a letter sent Aug. 14 from DEQ and the Health and Human Services department to  Sen. Bill Cook, and copied to the Senate and House leadership, in November 2016, “the previous administration” received a research report from the EPA and NC State University scientists regarding the Cape Fear watershed. This study, conducted in part by NC State professor Detlaf Knappe, showed GenX was present in the Lower Cape Fear and in untreated water at the Cape Fear utility. In 2013, the researchers found average levels of 631 parts per trillion of GenX in 37 samples of untreated water.

The Cape Fear Public Utility Authority received the same study in May 2016, according to the letter.

The letter was in response to communications sent last week from the Senate Republican Caucus. In that correspondence, lawmakers asked DEQ Secretary Michael Regan and Secretary of Health and Human Services Mandy Cohen a series of questions about Chemours and GenX. Lawmakers also requested a justification for their departments’ combined $2.5 million emergency appropriation.

Lawmakers had set a deadline of Aug. 14, at 5 p.m. for Cohen and Regan to provide the information.

Jamie Kritzer, DEQ communications director, told NCPW that it’s unclear who at DEQ originally received the study last November. Kritzer said the reason the current administration didn’t act more quickly is because this past spring, several staff members from the Division of Water Resources had tried to meet with Knappe to better understand the study results, but scheduling conflicts prevented that meeting from happening.

But it appears neither Chemours nor GenX  rose to enough importance under van der Vaart to merit a mention in the transition documents provided to the new DEQ administration. (Transition documents are used to transfer institutional knowledge from one administration to another.)

However a different study by Knappe regarding another emerging, unregulated contaminant — 1,4 dioxane — does. Under the heading, “Special studies: 1,4-dioxane,” Jay Zimmerman, chief of the Division of Water Resources, notes that the presence of high levels of 1,4-dioxane in the Haw River “may be an indicator of things to come as previously unregulated emerging pollutants are studied.”

The chemical, used to stabilize solvents, is being discharged by industries upstream near Burlington and Greensboro. Zimmerman wrote that federal discharge permits would be modified to require additional sampling to “better isolate the issue.” He also wrote that “efforts to reduce sources will result in significant cost and potential loss of industry opportunities.”

A geologist, Zimmerman has been with DEQ since 1987. He managed the section overseeing groundwater protection and animal operations before van der Vaart promoted him to DWR head in 2015.

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Environment, Governor Roy Cooper, Legislature

Gov. Cooper vetoes SB 16 over dangerous rollbacks to water quality protection

The governor’s veto last night of Senate Bill 16 has temporarily halted several environmental laws, including one that gives eminent domain power to Dominion Energy for the Atlantic Coast Pipeline.

Gov. Cooper vetoed Senate Bill 16 , the Business and Regulatory Reform Act of 2017.

It passed the House and Senate when they convened for just one day earlier this month, and when many lawmakers were out of town attending a national legislative conference.

Cooper’s veto statement read:

We should make it easier, not harder, for state and local governments to protect water quality, whether through stormwater safeguards or by giving public health departments the ability to revisit wastewater permits if needed Rolling back ways to protect water quality is dangerous.

SB 16 includes a provision expressly enabling Dominion Energy to use eminent domain to build the Atlantic Coast Pipeline in eastern North Carolina. Currently, in-state companies can condemn private property for these types of projects. But Dominion is based in Virginia, and although the company co-owns the ACP with Duke Energy, needed this language to quickly proceed, should the project receive federal approval.

The bill also micromanages DEQ by giving the Environmental Management Commission — which is politically appointed more oversight over the agency’s reports. And the measure weakens coastal stormwater and development rules, and eliminates public input from landfill permit renewals. (NCPW annotated the bill, which we’ve included below.)

Upper Neuse Riverkeeper Matthew Starr issued a statement shortly after the veto, “calling it a victory for clean water and property rights.”

“If SB 16 became law, it would open the door for oil companies using eminent domain to build dangerous pipelines through the back yards of families across the state. And it would make it more difficult for communities to hold local landfills accountable for poor practices. When it comes to clean water, SB 16 would literally pave the way for contamination. The bill’s language makes it easier for developers to skirt responsible stormwater controls, making it more likely that toxic contaminants enter our public waterways.”

SB 16 had taken on many forms since it was filed early in the session — Jan. 26. — serving primarily as a placeholder for various legislation that could be added later. One amendment that passed the House but failed in the Senate conference committee is worth watching: In June, Rep. John Bell, whose district includes counties within the Lower Neuse River basin, sponsored an amendment that would have directed the Legislative Research Commission to study flood control in that basin. While this sounds innocuous, building flood control reservoirs can create more problems than they solve. They eat up land, potentially creating environmental justice problems, and fragment ecosystems. (Ironically, a different bill would have weakened rules regarding riparian buffers, themselves a natural method of flood control.)

Under the amendment, the Legislative Research Commission would have also considered alternate water sources for Raleigh when flooding forces the US Army Corps of Engineers to lower the level of Falls Lake. Jordan Lake is already supplying water to more than 300,000 people, a number that is expected to grow; Lake Crabtree is contaminated with PCBs in the fish and sediment. Within the county, that leaves Lake Benson, near Garner. The supply of clean drinking water is definitely an issue facing Raleigh, but it seems strange to tuck such a far-reaching provision in an amendment to a omnibus bill.

Senate Bill 16 by LisaSorg on Scribd

Environment, Governor Roy Cooper, Legislature, public health

NC Senate caucus insinuates Cooper’s $2.5 million request to address GenX is “simply public relations”

State Senate Republicans, in part responsible for enacting deep budget cuts for environmental programs, seem reluctant to grant Gov. Roy Cooper’s emergency funding request to deal with the chemical GenX in drinking water. Instead, in a letter sent yesterday to the governor, the Republican caucus questioned whether “any additional appropriations could make a meaningful difference in water quality and public safety in the lower Cape Fear region” and if Cooper was simply engaging in “public relations.”

The letter was signed by Sens. Bill Cook, Trudy Wade, Andy Wells, Rick Gunn, Michael Lee, Norm Sanderson and Bill Rabon. They asked for a response by Aug. 14; the legislative session reconvenes Aug. 18.

Earlier this week, Cooper, Department of Health and Human Services Secretary Mandy Cohen and Department of Environmental Quality Secretary Michael Regan unveiled a proposal of how they would spend an estimated $2.5 million on not only GenX but other water quality and related public health issues.

Photograph of Senator Bill Cook of coastal North Carolina

Sen. Bill Cook (Photo: NC General Assembly)

In the letter, the caucus posed 13 questions about the administration’s handling of the GenX crisis. A few of the questions were legitimate, such as whether Chemours should be required to pay for long-term water sampling. But others appeared to be leading or had already been answered via press releases and media reports.

Among them is the decision of the Department of Health and Human Services Secretary Mandy Cohen to drastically reduce the public health goal of GenX in drinking water. Earlier this month, Cohen announced at a press conference in Wilmington that her department adjusted the levels from 70,000 parts per trillion to 140 parts per trillion. The reason, Cohen said, is because the EPA had initially provided only one study on which to base the goal; later federal officials gave DEQ a second study that informed the decision to reduce the acceptable amount.

GOP caucus members also wanted to know why DEQ has not issued a notice of violation under the Clean Water Act to Chemours, responsible for the GenX discharge. NCPW has reported that a federal consent decree filed as part of a lawsuit in West Virginia states that GenX can be discharged into public waterways under the Clean Water Act as long as it’s a “byproduct” of the manufacturing process, not the manufacture of GenX itself.

Sen. Trudy Wade (Photo: NC General Assembly)

Part of the $2.5 million appropriation would fund an additional 16 positions within DEQ’s water resources division. This year’s budget eliminated 16.75 positions department-wide, following a pattern of continued cuts that have handcuffed the agency. There is a two-year backlog for reviewing wastewater discharge permits.

Republican caucus members responded to the request by saying:

“We know the department currently employs many individuals that perform non-regulatory functions not involving the implementation of federal or state environmental quality programs. An example of this is the “Office of Innovation” that was just created by Secretary Regan. Rather than using taxpayer funds to create additional government employees, could some of these individuals performing non-regulatory duties be shifted to assist with the permitting backlog and other regulatory functions that have been neglected?”

According to the DEQ website, two people work as policy and innovation advisors: Mary Penny Kelley, whose position in an early version of the budget was eliminated; and Jennifer Mundt. Both advisors are tasked with developing innovative policies and solutions to environmental and energy issues. As for the reality of shifting employees from “non-regulatory” duties to regulatory ones, it’s possible that the workers would not have the skills and expertise to do those jobs, particularly if they require a science or engineering degree.

Earlier this year, the Star-News in Wilmington reported on a study conducted by two EPA scientists and an NC State University professor that GenX, an unregulated, emerging contaminant had been detected in drinking water in New Hanover, Brunswick and Pender counties. The source of the chemical was upstream, the Chemours plant in Fayetteville, which had been discharging GenX into the Lower Cape Fear. GenX is an unregulated, “emerging” contaminant. That means the EPA has not conducted sufficient safety studies to set a maximum contaminant level for the chemical in drinking water.

There are hundreds of such contaminants, including 1,4-dioxane, found in the Haw River and the Pittsboro drinking water supply, and Chromium 6, detected in private wells near coal ash plants. The decision whether to regulate a contaminant is highly politicized, and the EPA has been criticized by the Government Accountability Office for failing to expedite scientific review.